Executive Briefing December 15, 2017

TOP STORIES: Microsoft v. DoJ – Irish Government Amicus Brief

The Irish Times reported on amicus briefs filed Wednesday with the U.S. Supreme Court in Microsoft’s warrant case. The Irish Times published an article focused on the neutral brief filed by the Irish government, and subsequently published a column by Karlin Lillington criticizing the Irish government for being “unacceptably wish-washy” on the issue.

TOP QUOTES

“Yet the Irish government is taking the unacceptably wishy-washy position that the case is “complex” and, bizarrely, that such interference in its sovereignty is, possibly, just fine… Ireland must be a firm data protection advocate or risk losing global trust – and companies and inward investment.”

HILL UPDATE

Congress is under the gun to reauthorize a major surveillance law in a debate that has been overshadowed by other major policy fights, like net neutrality and the investigation into online Russian election meddling. Why it matters: The law — known as Section 702 — expires at the end of the year. Intelligence agencies say it would be ultimately catastrophic if it isn’t reauthorized. Privacy-minded lawmakers and advocates, however, say that if it is reauthorized without reforms it will perpetuate a sprawling surveillance system that ensnares Americans’ information without a warrant.

Politico reported on comments by House Judiciary Committee Chairman Bob Goodlatte and Deputy Attorney General Rod Rosenstein during today’s House Judiciary Committee hearing regarding Section 702 reform. The piece notes that the two argued over a warrant requirement for the FBI to query the Section 702 data base.

ARTICLE SUMMARY

The Hill published an opinion piece by Utah Attorney General Sean Reyes urging Congress to pass ICPA to modernize the U.S.’ outdated data laws and “allow law enforcement to access data and protect public safety, while ensuring consumer privacy rights.”

HOW MUCH information about you is on your cellphone? Likely the most intimate details of your life: photographs, Internet searches, text and email conversations with friends and colleagues. And though you might not know it, your phone is constantly creating a record of where you are at any given moment through communications with your wireless service provider. That record helped convict Timothy Carpenter, who received a lengthy prison sentence for his role in a string of burglaries in 2010 and 2011. Without a warrant, law enforcement officials reviewed more than four months of location records from Mr. Carpenter’s phone and placed him at the crime scenes. The Supreme Court is now considering his story in what has the potential to be the court’s most significant Fourth Amendment case in decades.

The Supreme Court is re-examining American rights to digital privacy in a hallmark case that’s been called the most important electronic privacy case of the 21st century. Potentially, the court’s decision could reframe the modern-day understanding of the Fourth Amendment, imperil society’s expectations of digital privacy, and reinterpret notions of American identity and the American right to privacy. This landmark decision can be traced back to a series of crimes that took place nearly eight years ago, when Timothy Ivory Carpenter orchestrated a string of robberies at cellphone stores, including Radio Shack and T-Mobile, in several midwest cities in the US. After Carpenter’s arrest, prosecutors recreated his physical movements over a six-month period using geolocational data from his cellphone records. Their case rested almost entirely on Carpenter’s cell phone records, which had been obtained through the Stored Communications Act, a federal law that requires investigators provide reasonable proof to obtain tracking data, but has less exacting stipulations than those demanded by a warrant.

The Fourth Amendment of our sensational Constitution reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, [a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” What this means is: Government can’t invade your property or grab your stuff – without first securing a warrant. And they have to have a darn good and specific reason to ask for said warrant. In this the Digital Age, we yet again find our government lagging way behind We the People and our private sector.

CHICAGO — Tech giant Apple is setting its eyes on teaching coding to every public school student in one of the biggest and most racially diverse school districts in the nation. Apple CEO Tim Cook told USA TODAY that the company — which like many top tech firms has faced calls from politicians and activists to take steps to diversify its workforce — in the New Year will partner with Chicago school system officials to teach the coding language Swift in city classrooms and through after-school coding clubs in a school district.

Ever since Edward Snowden revealed the extent to which the U.S. government searches and reads the email of millions of people — and the complicity of telecom and tech companies in the effort — demands that the massive surveillance program be reined in have been intense across party lines. Yet with the imminent expiration of the legal authority that allows law enforcement to monitor the email of foreigners and many Americans, lawmakers are no closer to overhauling the surveillance process than they were when Snowden, the now-fugitive former National Security Agency contractor, sought asylum in Russia four years ago.

This past April, engineer Alex Reben developed and posted to YouTube, “Deeply Artificial Trees”, an art piece powered by machine learning, that leveraged old Joy of Painting videos. It generate gibberish audio in the speaking style and tone of Bob Ross, the show’s host. Bob Ross’ estate was not amused, subsequently issuing a DMCA takedown request and having the video knocked offline until very recently. Much like Naruto, the famous selfie-snapping black crested macaque, the Trees debacle raises a number of questions of how the Copyright Act of 1976 and DMCA’s Fair Use doctrine should be applied to a rapidly evolving technological culture, especially as AI and machine learning techniques approach ubiquity.

WASHINGTON — Political advertisements on Facebook would have to include disclosures showing who paid for them, under two draft legal opinions the nation’s federal election regulators are scheduled to take up this week. If the Federal Election Commission (FEC) votes to adopt either opinion at its Thursday meeting, it would mark the government’s first major move to regulate political advertising on social media following revelations that Kremlin-tied groups used ads on Facebook and other platforms in an effort to sway the 2016 presidential election.

THE FEDERAL COMMUNICATIONS Commission voted Thursday to dismantle its net neutrality regulations. But that won’t end the fight over rules that prohibit internet service providers from creating fast lanes for some content, while blocking or throttling others. Most immediately, the activity will move to the courts, where the advocacy group Free Press, and probably others, will challenge the FCC’s decision. The most likely argument: that the commission’s decision violates federal laws barring agencies from crafting “arbitrary and capricious” regulations. After all, the FCC’s net neutrality rules were just passed in 2015. Activists and many members of Congress, including at least six Republicans, pushed for a delay in the vote, but apart from a brief delay due to a security issue, the vote occurred as planned.

THINK TANK/TECH TRADE ASSOCIATION HIGHLIGHTS

Americans for Tax Reform (ATR)

Letter on apprenticeship legislation: ATR “released a letter in support of S. 2222 which will expand 529 savings accounts to include apprenticeship programs. This legislation will help bring more job opportunities to young Americans.” The group stated, “Expanding this program to apprenticeships would greatly help young adults. Today, youth unemployment is high at 9 percent, and many continue to live with their parents. Often employers can’t find young adults with the skills needed to do certain jobs.” (ATR BLOG – ATR Supports Expanding 529 Savings Accounts to Include Apprenticeship Programs, By Alexander Hendrie, December 14, 2017)

BSA | The Software Alliance

Bloomberg BNA mention on NAFTA: Policy director Kenneth Propp argued that “NAFTA should advance mutually beneficial approaches to cybersecurity among the three governments.” He added, “The agreement should encourage the adoption of voluntary, standards-based cybersecurity measure by both governments and industry, as well as an acknowledgment that cyberthreats undermine free trade.” (BLOOMBERG BNA – Privacy a Necessary Component of NAFTA Digital Trade Discussions, By George Lynch, December 11, 2017)

Information Technology Industry Council (ITI)

Multiple materials on IT modernization:

o Statement: Senior vice president Trey Hodgkins said that ITI applauds “the Trump Administration’s continued focus on this effort. The completion of this report is a step in the right direction to begin an overhaul of the archaic IT that costs tax payers $60 million a year to maintain.” (ITI STATEMENT – Tech Commends White House Modernization Efforts, December 13, 2017)

o Blog post: Hodgkins also stated that ITI “commend[s] the Senate and House’s continued commitment to acquisition reform, adopting innovative technologies to help warfighters meet their missions, and improving oversight of cybersecurity.”He added, “While no single provision can reform the entire system, these deliberate and systematic changes will improve how DoD procures IT solutions and services, and ultimately will save taxpayer dollars and deliver mission-critical technology to warfighters faster. We look forward to continuing this work in the next iteration of the NDAA.” (ITI BLOG – A Step in the Right Direction for Government IT Modernization, By Trey Hodgkins, December 13, 2017)

Internet Association

Statement on IT modernization report: Director of cloud policy Brian Larkin stated, “The internet sector thanks the American Technology Council (ATC) for their diligent work and extensive stakeholder outreach on federal IT modernization. Today’s updated report affirms the need to adopt innovative, commercial cloud services, which provide better, more cost-effective, and more secure solutions.” (INTERNET ASSOCIATION STATEMENT – Statement On The Finalized White House IT Modernization Report, December 13, 2017)

U.S. Chamber of Commerce

Blog post on NAFTA: Senior vice president John G. Murphy wrote, “NAFTA has delivered substantial benefits to U.S. manufacturers, who have boosted export sales significantly thanks to the agreement. Modernizing NAFTA makes sense, but threatening to withdraw from the pact or incorporating strict new rules to make it unusable would endanger American jobs in factories from the Atlantic to the Pacific. We can’t let that happen.” (U.S. CHAMBER OF COMMERCE BLOG – The Chief Beneficiary of NAFTA is Hidden in Plain Sight, By John G. Murphy, December 7, 2017)

NOTABLE QUOTES

“I think most of our conference is for reauthorization, but there’s enough of our conference that can bring it down… It sounds like FISA really needs to be … hashed out in the open with the full Congress. I don’t know if you can do that with something like FISA, but let people add amendments so that they can get to ‘yes.'”

“If there’s something that could provide a hiccup in the next two weeks, it’s going to be 702 reauthorization.”

–Rep. Mark Meadows

“Well, our Constitution is exquisitely clear. Unfortunately, our Congress and its laws are not. We desperately, immediately need to write a law that is a whole lot more pertinent to today’s private sector – and a whole lot more Constitutional – than is the ridiculous 1986 Electronic Privacy Communications Act.”

“As a law enforcement leader, I understand the vital need for quick and reliable access to evidence. But as a public official elected to defend privacy and liberty interests of my fellow citizens, I am very sympathetic to arguments made by companies like Microsoft. On one hand, we cannot compromise liberty interests for mere expediency in policing. On the other hand, it’s a travesty to allow international criminals to run free because of Byzantine agreements and outdated laws. Please join me in calling on Congress to pass ICPA. It is the most responsible way to balance the critically important interests of personal privacy and law enforcement.”

“In wavering on this critical point the Government is out of step with the European Union’s legislative trend to acknowledge fundamental privacy rights, such as in the incoming general data-protection regulation, and numerous privacy-protective positions taken in recent cases by the European Court of Justice.”

“Whatever the Supreme Court rules, it’s past time for Congress to raise the standard for longer-term, larger-scale location record requests. For inspiration, lawmakers can look to state legislatures that have constrained authorities from warrantless requests for, variously, real-time location tracking, historical records, or both — though they must be careful not to overburden law enforcement in emergency situations. The high court may not know where to draw the line on privacy. But Congress, unlike the courts, is in the business of line-drawing.”

“I am, after all, one of the many commentators that has argued that the case presents the Supreme Court a binary choice of two bad options – and that what is needed is a much more nuanced policy response. But, unfortunately, that is a task left to the legislators. And that Kerr is wrong on the law. Kerr’s key error is assuming that because the All Writs Act had been used in analogous situations prior to the passage of the SCA, it should be relied on here. But that argument ignores the changes wrought by the SCA, the differences between how some of those pre-SCA cases operated and the reality today, and the lack of resolution on the underlying key issue in the case.”